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Substantive Media Regulation in Three Dimensions

Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic polity, while opponents emphasize self-interested or captured government elites. As to the second issue, who is being regulated, supporters emphasize owners of media corporations, while opponents emphasize editors and reporters. As to the final issue, the goal of regulation, supporters emphasize the need to facilitate fulsome discussion of important public issues, while opponents emphasize the conceptually impossible aim of creating perfect balance between opposing points of view. With these contrasting positions in mind, the article attempts to synthesize principles that might guide a workable and beneficial revival of the fairness doctrine. In order to maximize the extent to which new fairness regulations would serve the political community rather than political elites, both Congress and the courts would have to take a more active role than under the former fairness doctrine in shaping and directing FCC enforcement. In order to minimize interference with socially valuable editorial functions, enforcement of fairness regulations would have to focus on countering economic disincentives to presenting political debate and, where possible, protecting editors from economic pressure imposed by owners and publishers. Finally, the goal of any new fairness regulations would most sensibly be framed as balancing the Internet's atomization of public discourse and opinion by requiring conventional mass media to present varied perspectives on important public issues. The focus should not be on some elusive idea of balance but rather on the prominence of debate and dissension.